On a bitterly cold night in December, comedian Paula Poundstone takes the stage at La Zona Rosa, seven blocks south of the Texas Governor's Mansion in Austin where George W. Bush waits -- like most everyone else in the country -- for the U.S. Supreme Court to decide whether he will be the next president of the United States.
Poundstone is headlining a fund-raiser for the Texas Freedom Network, a group that sees itself as a counterbalance to the religious right in the state. The moment is not lost on the politically savvy comedian: Here she is, performing in front of 200 or so of Austin's liberal elite, in the capital city of the state governed by the man mostly likely to succeed Bill Clinton. She's definitely behind enemy lines.
Early in her act, Poundstone mentions that she's going to miss President Clinton -- and that she doesn't understand why people are so hard on him. She notes that while the two presidents before Clinton had managed to run the economy into the ground, the nation has enjoyed unprecedented prosperity during the Clinton years. What's not to like? asks Poundstone, wearing her trademark long jacket and necktie. Well, of course, she acknowledges, there was all that trouble over Monica Lewinsky.
"But I don't know," says Poundstone wryly, looking down at her feet and sliding one foot in front of the other, "I just thought she was being patriotic."
The punch line hits its mark, and the crowd erupts into laughter. The joke even brings a brief smile to the face of Will Harrell, the new executive director of the American Civil Liberties Union Foundation of Texas who, for much of the evening, has sported a wistful look while gauging the turnout for the TFN benefit.
"I wish all these people would support the ACLU like this," Harrell says.
Harrell's envy is understandable. It is, after all, his job to attract supporters to the ACLU. Last April Harrell was handed the reins to the Texas chapter of the constitutional watchdog with the mandate of returning it to its glory days of the 1970s and 1980s when the ACLU, especially the Houston chapter, developed a reputation as an aggressive defender of an individual's constitutional rights when threatened by overzealous governments or abusive law enforcement agencies. The organization's work earned it a reputation unlike any other's: a group both revered and loathed.
But for most of the past decade, the Texas ACLU has experienced its own constitutional crisis (see "The Life and Death of Houston's ACLU," by Steve McVicker, December 23, 1993). In 1992 the national ACLU board wrestled fund-raising control away from the Houston and Texas chapters, and a civil war ensued. Divisions between former allies became so deep that the former staff attorney for the Houston office branded the national ACLU as nothing more than "a direct-mail fund-raising scam." Membership declined, as did the ACLU's involvement in controversial issues. The local chapter became a shell of its former self.
Then three years ago Houston criminal defense attorney Greg Gladden, who was as bitter as any of the locals after the rift with the national office, decided enough was enough. He ran for, and was elected to, board president of the Texas ACLU. Since then, he has been planting the seeds for the rebirth of the organization. He began by mending political fences and convincing old friends to come back. Last spring he made what he considers his most important move to date: the hiring of Will Harrell, an activist with impressive liberal credentials, to direct the day-to-day operations -- and bring about the comeback -- of the Texas ACLU.
Harrell has wasted no time in his new position. In the past six months he has launched or renewed or co-opted a series of progressive initiatives, which include an effort to abolish the death penalty, a police accountability project, state-supported indigent defense programs and a defense of homeowners' rights. But Harrell knows the obstacles he faces, obstacles that even his considerable abilities and charm may not be able to knock down.
Meeting Will Harrell in person for the first time is a bit startling. On the phone, Harrell's gravelly voice conjures up the mental image of a civil liberties cowboy who has just gotten into several dustups over the Bill of Rights. Instead, a visitor entering the Texas ACLU office on West Oltorf in south Austin is greeted by a man in a T-shirt and jeans, sporting a braided black ponytail and dark male-model looks. But don't be fooled; when it comes to work, he is no pretty boy.
The 35-year-old Harrell is a native Texan who grew up in Katy, where he was an all-district linebacker. His progressive leanings surfaced while he was at the University of Texas in Austin, where he organized the first student chapter of the ACLU and became a protégé of former ACLU staff attorney Jim Harrington, who now heads the Texas Civil Rights Project.
After graduating from UT, Harrell attended law school at American University in Washington, D.C. Armed with his law degree, he worked for a time with the ACLU's national prison project, which monitors conditions at correctional institutions around the country. Later he served as an aide to U.S. Representative Mickey Leland, who Harrell says taught him to be blunt. After the Houston congressman's fatal plane crash in 1989, Harrell took a job teaching at Catholic University in Quito, Ecuador. He then prosecuted human rights cases for the Guatemalan National Revolutionary Unit during the last four years of the 36-year civil war in Guatemala, which ended with a peace accord in December 1996. It was an experience, he says, that helped him learn what tactics to use when you are outresourced.
"When you're outnumbered and outgunned," says Harrell, "you've got to hit with everything you've got right up front. Hope that the enemy recoils, and then come again."
Burned out by the time the war was over, Harrell obtained a fellowship to return to American University. After that, he spent a year in Colorado doing legal services for farmworkers but became disenchanted by all the congressional restrictions he faced.
"You can't represent undocumented workers that make up the majority of the workforce," says Harrell. "You can't bring class actions, can't sue for attorney's fees. So essentially you're just running around the state putting out fires. And all you ultimately get is what the farmworker was owed in the first place."
Harrell went on to work for the National Lawyers Guild and the Center for Constitutional Rights police accountability project in New York City, where he was working when the Texas ACLU job opened up. Early on in the search, state board president Gladden knew he wanted Harrell as his point man.
"He comes from a very rich background of civil and human rights," says Gladden. With Harrell in place, Gladden became more excited about the ACLU than at any other time since he first got involved in the late 1970s. He points out that the Texas ACLU has been in the doldrums for quite some time. During that period, Gladden himself was one of the group's harshest critics.
In 1992 the national ACLU board rewrote the guidelines that governed the relationship between the national office and the affiliates. The policy called for only one ACLU affiliate per state; other offices in the state would serve as satellites of the main state chapter. That meant that the Houston chapter, which had long been more active and more financially solvent, suddenly faced having its money and legal agenda controlled by the state office in Austin, which was run by Jay Jacobson, the new executive director handpicked by the national board. Houston board members like Gladden were bitter about the changes. It didn't help that, at the time, conservatives like former president George Herbert Walker Bush were railing about "card-carrying members" of the ACLU. Jacobson, in Gladden's mind, didn't do enough to fight that propaganda. "George Bush," he says, "could not have picked a better person to nullify the ACLU in Texas."
Despite those harsh words, or maybe because of them, Gladden now finds himself a major force in trying to turn around the organization. "I thought the ACLU was important and worth saving," he says.
When he took over as board president, Gladden knew what his top priority would be: to oust Jacobson as executive director. He also knew it would be a drawn-out battle, nearly three years in duration, since the state board did not yet have the authority to hire and fire. So more immediately, Gladden devoted his energy to bringing back former members and activists and retiring a substantial portion of the state affiliate's debt. A couple of breach-of-contract lawsuits filed by former employees and a slander suit filed by a couple of East Texas cops who had been called murderers by the then-director of the Dallas chapter cost the national office around $250,000 to settle. Then there were back dues owed to the folks in the national office, dues that they were not about to forgive.
Before granting Texas some autonomy, national ACLU officials wanted at least a partial reduction of that debt. Through a few sizable donations and bequeathals from longtime loyalists, Gladden managed to reduce the amount owed by more than half. In return, Texas got the power to choose its own executive director.
Last spring, when the state board voted to replace Jacobson with Harrell, Gladden says, Jacobson was offered the opportunity to stay on as legal director. Jacobson could not be reached for comment, but given the less than amicable history between himself and Gladden, it is not surprising that he refused the offer. In a gracious farewell letter, Jacobson did wish the organization well and pledged his continued support while in private practice in Austin. Speaking from firsthand experience, he also warned the board against saddling Harrell with too many responsibilities, suggesting instead that board members take over such tasks as fund-raising.
On this one issue, Gladden agrees with Jacobson; the board president has even set a goal to triple the state ACLU's budget to $750,000 within the next three years. It's a figure he believes will make the organization a force to be reckoned with.
Considering that just five years ago the Texas ACLU didn't even have a board of directors, the mere suggestion of such a turnaround is encouraging to new board member David Kahne. Kahne, a tall, slender man with an unruly beard, is the former staff attorney for the Clark Read Foundation, which previously served as the fund-raising arm of the ACLU's Houston chapter, which was formed in the 1950s. (The first ACLU chapter in Texas was established in San Antonio in the 1930s and was one of the first outside New York.) After the trouble with the national office, several disgruntled members of the Houston chapter attempted to continue their work through Clark Read, but the effort never matured. While Gladden credits Harrell with putting the Texas ACLU in a position for a comeback, Kahne believes the credit belongs to Gladden, a Fort Worth native whose father was a force in the ACLU chapter there.
"I think Greg has minimized some of the really huge problems that he and the rest of the board had to overcome," says Kahne, who adds that he joined the board because Gladden told him it was a chance to make a difference. "But it's a tribute to Greg's leadership. It's hard enough to raise money when you have a program you want to support. It's even harder when you are trying to come out of debt. Greg and the other board members have solved that problem. But there has to be some reason for members to give."
Gladden and Harrell believe those reasons are, once again, in place.
In the six months he has been executive director, Will Harrell reports that the ACLU of Texas has attracted more than 500 new or renewed memberships, 90 of them in the Houston area, bringing the number of dues-paying members to about 9,000 statewide. The renewed interest in civil liberties in Texas, Harrell says, can be traced back to the ACLU's recent involvement in a number of controversial cases.
Arguably, the Texas ACLU's most important recent action was its decision to join the legal battles in Tulia, a small town of 4,500 predominantly white residents located 75 miles south of Amarillo. The trouble in Tulia began in January 1998 when the Swisher County sheriff's office hired veteran lawman Tom Coleman, the son of a Texas Ranger. The deputy, who had been working as a welder before he got the job, was assigned to oversee an antidrug operation in Tulia, a rather puritanical place where students are subjected to random drug tests. Eighteen months later, 43 alleged drug dealers, including 41 African-Americans -- 10 percent of Tulia's black population -- were rounded up. However, Coleman, a white man, apparently had little physical evidence to support his contention that he was able to purchase small amounts of cocaine from the suspects. As one black Tulia resident told The New York Times, "Can you see 43 dealers surviving in this small town? There would be murders and everything. Everybody would have to be doing it."
Questions about the propriety of the arrests were first raised by Amarillo lawyer Van Williamson, a court-appointed attorney, who began looking into Coleman's history. According to reports first published in the Texas Observer, Coleman had suddenly departed from the sheriff's office in Cochran County after running up more than $6,000 in debts to area merchants. He eventually was charged with misdemeanor theft. In a letter to state police officials, Cochran County Sheriff Ken Burke wrote that "Mr. Coleman should not be in law enforcement, if he is going to do people the way he did this town." Former co-workers in the Pecos County sheriff's department, where Coleman worked earlier in his career, told Williamson that Coleman was hot-tempered and a compulsive liar. Nevertheless, in all but one of the Tulia drug trials, the disturbing information about Coleman, who now works as an undercover officer in North Texas, was not allowed into evidence. So Williamson turned to Jeff Blackburn, a fellow Amarillo attorney who volunteers his time to the ACLU.
"What we're doing," says Blackburn, "is putting together a group of lawyers that we could never have [put together] without the ACLU involved. No small mom-and-pop organization could get this done. We've made some good linkage with the ACLU national groups that are studying drug testing and drug policies around the country. And by doing that, we have muscled up the defense effort.
"Because if you look at this thing, it's a war that has about 132 separate battles in it. That's a big damn war. And it's going to take a long time to fight. And there's got to be a lot of strategic thinking involved. You can't just approach it like a headless samurai and just attack without thinking. So the ACLU has wound up becoming both the brains and the muscle on the legal end of this thing. We couldn't be doing it without them."
In addition to appealing the convictions in Tulia, Blackburn and the ACLU, in coordination with the NAACP, have filed a federal civil rights lawsuit on behalf of one of the defendants. Blackburn says more are on the way. The ACLU also has filed an administrative complaint with the U.S. Department of Justice, urging federal prosecutors to investigate the Tulia arrests for possible criminal violations by law officers. Additionally, two Tulia defendants have yet to go to trial, and Blackburn says major defenses will be mounted on their behalf -- the first time, he says, that any of the alleged drug-dealing cases will have been seriously tested in court.
"And that's pretty cool," says Blackburn, "because the ACLU usually doesn't do criminal cases."
Blackburn is a criminal-defense and civil rights attorney by trade. In 1997 he won a $36 million judgment for his client against Texas State Technical College, the largest award in the history of the Texas Whistleblower Act. For a time, Blackburn ran the High Plains Center for Constitutional Rights in Amarillo and claims that Texas Lawyer once described him as "the trouble-makingist lawyer in West Texas." He credits Harrell with convincing him, and other attorneys like him, to return to the ACLU family.
"This sounds like enthusiastic booster bullshit," says Blackburn, "but it's not. But we are going to build a model of how you resist something like this. You get the community organized and mobilized. You keep the story in the news. You keep it moving, and you sue the shit out of everybody."
It is an attitude shared by many in the new Texas ACLU. Together, they are behind several aggressive legal initiatives around the state, including:
" The Police Accountability Project: Civil liberties activists in Austin are hopeful that the Austin City Council will approve the creation a Civilian Monitor's Office, which will field and investigate allegations of police brutality and wrongdoing. The office would have full access to the Austin Police Department's internal affairs files and have the right to interview volunteer witnesses. The head of the office would earn a salary of $111,000 and oversee an annual budget of up to $500,000. However, the office would not have subpoena and enforcement power, and all disciplinary decisions would still be made by the chief of police.
State ACLU board member Ann del Llano has been instrumental in the negotiations with the city and the Austin police union over the creation of a civilian monitor. The push, says del Llano, came about after several controversial deaths of civilians at the hands of Austin police officers. As she told the Austin American-Statesman in October, "We think most cops are great, but we need to get rid of those stinkers."
In addition to the monitor's office in Austin, as well as others in Texas cities, the Police Accountability Project is pushing for state legislation to make police disciplinary files open to public records requests, and for a bill requiring all Texas police departments to keep racial profiling statistics, something that is already being done in Houston and Arlington. (Representatives of the Austin Police Association did not return calls from the Houston Press.)
" Prison guard brutality lawsuits: Through volunteer attorneys such as Yolanda Torres of Dallas (see "Unnecessary Roughness," by Steve McVicker, October 12, 2000) and Robert Rosenberg of Houston (see "What Really Happened to Rodney Hulin?" by Michael Berryhill, August 7, 1997), the ACLU is aggressively investigating the alleged abuse of inmates by Texas Department of Criminal Justice guards. Both trials got under way this month.
" School prayer in the Santa Fe Independent School District: Last June, in a 6-3 vote, the U.S. Supreme Court widened the separation of church and state by deciding not to allow school-sponsored prayers before football games in Santa Fe. The winning argument was presented to the high court by Galveston attorney Anthony Griffin on behalf of the ACLU, which had agreed to represent four families opposed to school-sponsored prayer. Despite the high court's ruling, however, this fall's gridiron battles in Santa Fe were marked by so-called spontaneous group prayers. Obviously, say ACLU officials, the school prayer battle is far from over in Santa Fe and other cities around the state.
"We are seeing in Texas explicit attempts to bring the clergy into the classroom," says state board member Kahne. "Even after the Supreme Court has said you can't bring church onto the football field, we are still seeing attempts to bring the clergy into the classroom. We are going to be fighting this for the next decade. It's not going to go away easily. But what is important is that we are making that fight."
" The Texas Stand Down Project: In August Harrell announced the formation of the ACLU's anti-death-penalty group, headed by Steve Hall, once a spokesman for former Texas attorney general Jim Mattox, who oversaw numerous executions. In addition to seeking a moratorium on the death penalty, the project will push for legislation that gives juries the option of sentencing convicted killers to life without parole. The project also is seeking to abolish executions of the mentally retarded and will scrutinize the court-appointed legal representation of indigent defendants across the state.
"I believe if we had something called life without parole, and as a criminal defense lawyer I could tell a jury that that was an option, there would be less people getting the death penalty," says Gladden. "There would be no need for it. There are some who fear that there will be just a bunch of people getting life without parole, and there will still be just as many people getting the death penalty. I don't believe that."
" Banned and challenged books in Texas public schools: The ACLU continues to bring attention to books barred or questioned by school districts across the state. There are some surprising volumes on the list: Harry Potter and the Sorcerer's Stone is outlawed by both the Houston and Fort Worth ISDs. Joshua school officials will not allow students to read One Flew over the Cuckoo's Nest, and the Pulitzer Prize-winning Snow Falling on Cedars is outlawed in the Boerne ISD.
" Homeowners' rights: In perhaps one of the oddest alliances in some time, ACLU board member Kahne is representing longtime Houston activist and gadfly Geneva Kirk Brooks in her fight to rein in the power of homeowners associations. Brooks is perhaps best remembered as a leader, in the late 1970s, of a group known as Citizens Against Pornography. Although her position then probably would have put her at odds with the ACLU, these days she and Kahne see eye-to-eye about the evils that allegedly can be wrought by homeowners groups.
"Community associations are a foreclosure racket," says the always quotable and colorful Brooks. Her attorney agrees.
"It's just a real scam, for a lack of a better word," says Kahne. "The homeowners associations are little nonprofit corporations that sometimes are headed up by petty tyrants that use their positions to take people's property. They not only control what the owners can and can't do with their property and how tall their grass is and what color their front door is, they also indulge in nonjudicial foreclosures."
In November state District Judge Patrick Mizell of Houston ruled that the Northglen Association had acted improperly in some of its dealings with Brooks, who owns a rent house in the Northglen subdivision. However, the judge refused to rule on her and Kahne's contention that the Texas Property Code, which gives homeowners associations their power, is unconstitutional.
"The Court believes," wrote the judge, "that any such decision should be made by the Court of Appeals or the Texas Supreme Court." Which is exactly where Brooks and Kahne are headed, in addition to the Texas legislature.
And when they get there, they will likely find Will Harrell.
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On the day before Al Gore concedes the presidential election -- for the second and final time -- to George W. Bush, the Texas state capitol resembles an academy for Secret Service agents. They give longhaired Will Harrell the fish-eye treatment as he makes his way to the office of State Senator Mike Moncrief of Fort Worth. Moncrief has agreed to sponsor an ACLU-backed bill that would prevent law officers from jailing citizens for crimes that do not carry a penalty of jail time. Later Harrell meets in the capitol's basement cafeteria with Stetson-wearing Gary Bledsoe, president of the Texas chapter of the NAACP. The two activists agree to work in tandem on numerous pieces of legislation, including the proposed moratorium on the death penalty, a bill on racial profiling -- which they refer to as government-mandated racism -- and funding the legal representation of indigents.
Although Bledsoe has just returned from Florida, where he helped file lawsuits on behalf of African-American voters who claim their constitutional rights were violated by being denied access to the polls, both he and Harrell seem to sense that another Bush presidency is imminent. In Harrell's opinion, this is both good and bad for the civil liberties business. Obviously, he opines, Bush will likely have the opportunity to appoint U.S. Supreme Court justices who do not have the same interpretation of the constitution as the ACLU does. But Harrell also believes there is reason for optimism.
"I think he will make an absolute buffoonery of his political party and his political movement," says Harrell with a smile. "And it will be a whole lot easier to attack and demonstrate what's wrong with him at the helm. The international spotlight will really bring world and national attention on the issues of Texas, the death penalty being No. 1 among them. His record in Texas will follow him to the White House. And that will add fuel to our fire."
And, Harrell hopes, more money and members to the ACLU rolls.